Kerala High Court
Ramesh Chennithala vs The State Of Kerala on 15 October, 2018
Author: P.Ubaid
Bench: P.Ubaid
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940
OP(Crl.).No. 83 of 2017
AGAINST THE ORDER IN CMP 1153/2016 of ENQ.COMMR. &
SPL.JUDGE,THIRUVANANTHAPURAM
PETITIONER/RESPONDENT IN CMP 1153/2016 :
RAMESH CHENNITHALA
AGED 60 YEARS, S/O.LATE V.RAMAKRISHNAN NAIR,
MEMBER KERALA LEGISLATIVE ASSEMBLY, RESIDING AT
CANTONMENT HOUSE, THIRUVANANTHAPURAM, PIN-
695033.
BY ADVS.SRI.T.ASAFALI
SMT.LALIZA.T.Y.
RESPONDENT/S:
1 THE STATE OF KERALA
DIRECTOR OF VIGILANCE AND ANTI CORRUPTION
BUREAU, THIRUVANANTHAPURAM, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN-682031.
*2 PAICHIRA NAVAS .A
addl. STATE PRESIDENT, PEOPLES FORUM FOR ANTI
CORRUPTION DRIVE, NAVAS MANZIL, PAICHIRA,
PALLIPPURAM PO, THIRUVANANTHAPURAM-695316.
ADDL.R2 IS IMPLEADED AS PER ORDER DATED
20.2.2017 IN I.A NO.242/2017
BY SRI.K.V.SOHAN, STATE ATTORNEY
SRI.P.NARAYANAN SR. GOVT. PLEADER
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 6.07.2018,
THE COURT ON 15.10.2018 DELIVERED THE FOLLOWING:
JUDGMENT
An order passed by the Special Court(Vigilance),Thiruvananthapuram on 30.12.2016 OP(Crl.).No. 83 of 2017 2
forwarding a complaint to the Director of the Vigilance and Anti Corruption Bureau (VACB), Thiruvananthapuram for preliminary enquiry, and also for registering a crime, if found necessary, is under challenge in this petition brought under Article 227 of the Constitution of India. The petitioner was the Home Minister of Kerala in the former Government. The former Government had granted promotion to four Senior Police Officers of IPS rank to the cadre of Director General of Police as per the GO(RT)No.1932/2016/GAD dated 01.03.2016. This order was issued on the basis of a cabinet decision. One of the promotees was posted by the Government as the Director of the VACB, which was a cadre post meant for Director General of Police. The Additional second respondent herein brought a complaint before the court below alleging nepotism, corruption etc, in the said promotion, and also in the posting of the Director of the VACB, and he sought orders for investigation under the Prevention of Corruption Act (PC Act), 1988. The said complaint was filed as CMP No.1153 of 2016, and after hearing the complainant, the learned trial Judge forwarded the complaint to the VACB for preliminary enquiry, and also for registering crime, if found OP(Crl.).No. 83 of 2017 3 necessary. The petitioner herein is the third respondent in the said complaint. The police officer who obtained promotion along with three others, and posted as Director of the VACB, is the first respondent in the complaint. The second respondent in the complaint is the then Chief Minister of Kerala, the 4 th respondent is the then Chief Secretary of the Government, and the 5th respondent is the then Additional Chief Secretary of the Government. The complaint itself states that promotion was given to the police officers as decided by the cabinet, but it alleges that it was in prosecution of a design hatched by the then Home Minister with the involvement of the Chief Minister, to by pass some senior police officers who had a better claim for posting as Director of Vigilance, and the then Government was very particular to post the first respondent as Director of the VACB. To facilitate such posting, four police officers including the first respondent were granted promotion in violation of the provisions of the law relating to the promotion of IPS officers, the complaint would allege.
2. Finding a prima facie case of wrong exercise OP(Crl.).No. 83 of 2017 4 of jurisdiction by the court below in forwarding the complaint for enquiry or investigation, this original petition was admitted to files. The complainant in the trial court was later impleaded as the additional second respondent. He filed a formal statement of objection, but later he did not turn up to contest the matter.
3. The scope and the extent of the jurisdiction of the High Court under Article 227 of the Constitution of India has undergone thorough change, and the Honourable Supreme Court has settled the position that the High Court can interfere under Article 227 of the Constitution of India, and correct the jurisdictional errors committed by the subordinate courts and tribunals. When any instance of wrong exercise of jurisdiction, or error of jurisdiction in the exercise of the powers of any subordinate court or tribunal is brought to the notice of the High Court, such errors can very well be corrected, and orders passed without jurisdiction, or on wrong exercise of jurisdiction can very well be set aside in exercise of the supervisory powers under Article 227 of the Constitution. (State through Special Cell, New Delhi v. Navjot Sandhu @ OP(Crl.).No. 83 of 2017 5 Afshan Guru and others [2003 (SCC(Crl)1545=2003(2) KLT SN 132] There can be situations where the police powers under the PC Act are misused or abused. This Court had on many occasions come across such instances where crimes were unnecessarily or baselessly registered by the VACB against public servants, and harassing investigations were made simply on the allegation that the acts or discharge of functions by the public servants had caused loss to the public revenue. Loss to public revenue cannot be the sole basis for a prosecution or procedure under the PC Act. The scope and object of the different provisions of the PC Act must be properly understood by the prosecuting agencies. In cases where a crime is unnecessarily or baselessly registered without the necessary elements constituting any offence under the PC Act, or where investigation proceeds baselessly, just to harass a public servant, the Court cannot go helpless, and the Court will have to interfere. In such cases of abuse or misuse of police powers under the PC Act, the High Court will have to interfere to prevent such investigative excess or harassment.
4. It is not known why one of the four OP(Crl.).No. 83 of 2017 6 promotees alone is arraigned as accused in the complaint brought by the second respondent. Four police officers were given promotion by the former Government, and the present Government has approved it, and have maintained the promotion given to the police officers. If the promotion granted by the Government is illegal, or if it involves any element of corruption or nepotism, it is not known why the complainant would not question the promotion given to the other three police officers. This conduct itself makes it very much clear that this is a malafide complaint, or the second respondent brought such a complaint either for personal ends or with some other ulterior motive. If at all, any promotion given by the Government to any public servant involves any illegality or violation of the provisions of the law governing such promotions, it is a matter to be examined by the competent judicial forum, when the promotion is challenged by the aggrieved persons. Promotion granted to public servants by the Government, or by any officer or agency under the Government, cannot be a subject matter of litigation or enquiry or investigation at the instance of members of the public. If any person or any public OP(Crl.).No. 83 of 2017 7 servant is aggrieved by such promotion, it must be his concern to challenge it appropriately before the competent forum. Promotion of public servants is a prerogative of the Government, or the authority competent to give promotion, and if the promotion involves any illegality or violation of the procedure established by law, it can be subjected to examination and adjudication only by the competent judicial forum. The remedy is not an investigation or prosecution under the PC Act. The complaint made by the second respondent does not disclose what exactly is the element of corruption he would allege in the promotion process or who exactly committed criminal misconduct in the promotion process, or in the posting of the first respondent as Director of the VACB. Of course, in the matter of posting of the State Police Chief, or the Director of the VACB, or any other responsible officer of high rank the Government can pick and choose, without, of course, violating the provisions of law or the procedure established by the law. It appears that the grievance of the complainant is that when other police officers were also there, the former Government picked and chose the first respondent as Director of OP(Crl.).No. 83 of 2017 8 the VACB. The Government may have their own reasons to pick and choose one of the officers or not to consider the other officers. It is a prerogative of the Government. That prerogative cannot be subjected to judicial scrutiny or Judicial review unless the process involves violation of any law or violation of the procedure established by the law. Without understanding these basic things, the complaint made by the second respondent happened to be forwarded to the VACB by the trial court. Here the supervisory powers of the High Court under Article 227 of the Constitution of India will have to be exercised, and it is being exercised for correcting the wrong orders passed by the trial court.
5. On the basis of the impugned order, a preliminary enquiry was conducted by an Inspector of the VACB, and he submitted a report, the copy of which I have perused. This Inspector has gone to the extent of deciding on the legality of the promotion and the posting made by the Government. The VACB has no such authority to question the authority of the Government, or to inquire into or report or decide on the administrative matters and decisions of the Government. OP(Crl.).No. 83 of 2017 9 Expressing serious concern over this report, this Court had observed in the interim order dated 20.02.2017 that the Government would have to think very seriously and decide whether the VACB in Kerala should be allowed to reign over the Government.
6. I have come across many cases of complaints mechanically forwarded, either for preliminary enquiry or for investigation. Such mechanical orders will have atrocious consequences. How such a complaint brought under the PC Act should be dealt with, has been explained by this Court for the attention of all concerned including special Judges, in Manoj Abraham, IPS v.P.P.Chandrasekharan Nair and Another [2017(3)KHC 983 = 2017(3) KLJ 896]. Biju Purushothaman v. State of Kerala [2008 (3) KLT 85] has also elaborately explained the different options possible on a complaint.
7. On a complaint received directly or on a complaint forwarded from the court under Section 156(3)Cr.P.C, the VACB can register a crime only if the complaint discloses a cognizable offence punishable under the P.C Act. In Manoj Abraham's case cited supra, this Court has explained how or when a cognizable offence is disclosed, for the purpose of registering OP(Crl.).No. 83 of 2017 10 crime under Section 154 Cr.P.C. A complaint forwarded from the court under Section 156(3) Cr.P.C, will not have any special sanctity. Once such a complaint is forwarded, it goes off the files of the court, and once received at the Station House Office, it is as good as a complaint directly received there. In certain cases enumerated by the Hon'ble Supreme Court in Lalitha Kumary's case [2013 (4) KHC 552 = AIR 2014 SC 187=2014(2)KLT 632], a preliminary enquiry will have to be made to find out whether a cognizable offence is disclosed, or whether there are materials for registering a crime and for investigation.
8. This case is a typical case of abuse of legal process and judicial process. This sort of complaints will have to be dealt with appropriately. A prosecution brought or initiated under the P.C Act cannot be lightly or casually approached by courts. It is a serious prosecution having serious consequences. It is quite unlike a prosecution alleging assault or cheating or rioting or other offences. An unnecessary investigation, or even a preliminary enquiry under the P.C Act against a public servant may cause hardships to such public servant, or it may cause blemish on the OP(Crl.).No. 83 of 2017 11 career of a public servant. Once such a blemish is caused, it would be very difficult to erase it. Before the court ordering investigation on a complaint under Section 156(3) Cr.P.C, the court must examine not only the complaint, but also the other materials substantiating the allegations in the complaint. The 2nd respondent in this case is a person who has filed about 45 complaints against different public servants. The Police report also shows that the complainant has been facing prosecution in three or four cases including a crime under the Protection of Children from Sexual Offences Act.
9. Prominently, the offences made punishable under the P.C Act, 1988 are
(a) Acceptance of illegal gratification or undue advantage
(b) Instances of criminal misconduct as defined under Section 13 (1) of the P.C Act
(c) Attempt to commit such substantive offences
(d) Abetment of such offences in different forms as explained under the various provisions, etc.
10. For a prosecution under Section 7 or Section 13 of the P.C Act, there must be a situation where a public servant, or somebody else in whom the public OP(Crl.).No. 83 of 2017 12 servant is interested, is benefited or has made or accepted some undue advantage or monetary gain, or has received any valuable thing for the performance of duty improperly or dishonestly or has misappropriated money from public funds, or has enriched himself illicitly. In the present case, it is not known, how the promotion given by the Government to four Police Officers involves elements of corruption, or what exactly is the misconduct therein. As already stated, promotion under the service laws is the prerogative of the Government and it is well settled that seniority alone shall not be the criterion for promotion in any sector. If the process involves any illegality or violation of the provisions of the law governing service, the aggrieved person can very well challenge it before the appropriate Forum. Now we have Tribunals established under the law and we have also the constitutional courts like the High Court and the Supreme Court to deal with such matters and to adjudicate on such disputes. Such an exercise cannot be undertaken by the Special Courts, and the legality or propriety of the promotions granted by the Government to public servants cannot be enquired into or investigated by the Police OP(Crl.).No. 83 of 2017 13 machinery. If that is allowed, it will have serious and atrocious consequences in our democracy governed by rule of law.
11. The Prevention of Corruption Act, 1988 has undergone a thorough change in 2018. The Prevention of Corruption (Amendment) Act of 2018 which came into force on 26.07.2018 has introduced so many changes in the law including some changes to protect the interests of public servants, or to protect them from unnecessary and baseless prosecutions. The very concept of illegal gratification or pecuniary advantage has undergone a thorough change, and now, by the amendment, any undue advantage derived by the public servant for himself or somebody else will come under the purview of corruption. Before the amendment of 2018, Section 13 of the PC Act of 1988 with the Sub Section (1) stood as follows;
"13. Criminal misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or OP(Crl.).No. 83 of 2017 14
b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
d) if he,-
i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources OP(Crl.).No. 83 of 2017 15 or property disproportionate to his known sources of income.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
12. Thus prior to the amendment, the Sub Section (1) contained five clauses, and clause(d) dealt with three separate instances of corruption described in the Sub Clauses (i) to (iii). Now after the 2018 amendment, Section 13(1) of the PC Act stands as follows;
"(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he dishonestly or fraudulently misappropriate or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or
b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1.- A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property OP(Crl.).No. 83 of 2017 16 disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.- The expression "known sources of income" means income received from any lawful sources."
13. The practical effect of the amendment is that clauses (a) and (b) of Sub Section (1) of Section 13 dealing with habitually accepting or obtaining gratification have been taken away, and such instances of public servants habitually committing offences, or habitually involving in acts of corruption are now dealt with under Section 14 of the Act as it stands amended by the 2018 amendment. The former Clause(c) of Sub Section (1) of Section 13 of the Act is now Clause(a), and the former clause(e) of Sub Section (1) of Section 13 is now Clause(b) after the amendment. Clause(a) deals with dishonest or fraudulent misappropriation from public funds or breach of trust in respect of properties is entrusted to the public servant during the discharge of his duty as a public servant, and the present Clause(b) after the amendment, deals with any public servant who has intentionally enriched himself illicitly during the period of his office. The new explanation added to the present OP(Crl.).No. 83 of 2017 17 clause (b) is something in fact taken from the former Clause(e), that if a public servant has in his possession, or in the possession of somebody else on his behalf, property or pecuniary resources disproportionate to his known sources of income, and for which he cannot account for, the public servant will be liable for prosecution under Clause(b) for having enriched himself illicitly during the period of his office.
14. Besides taking away the Clauses (a) and (b) of Sub Section (1) of Section 13, the new amendment has also taken away Clause(d) dealing with three different instances of criminal misconduct, and those instances are, in a modified form, now covered by Section 7 which has undergone a thorough change. Section 7 of the PC Act, 1988 stood as follows before the amendment;
"7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official OP(Crl.).No. 83 of 2017 18 functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.
Explanations.- (a)"Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification".The word "gratification"
is not restricted to pecuniary gratifications or to gratifications estimable in money.
c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. OP(Crl.).No. 83 of 2017 19
e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
15. But now Section 7 of the Act stands re-drafted by the 2018 amendment, and it stands as follows;
"7. Offence relating to public servant being bribed - Any public servant who,-
a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but OP(Crl.).No. 83 of 2017 20 which may extend to seven years and shall also be liable to fine.
Explanation 1.- For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.- A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.- For the purpose of this section,-
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."
16. Before the amendment of 2018 accepting or agreeing to accept or obtaining any gratification other than legal remuneration, as a motive or reward for OP(Crl.).No. 83 of 2017 21 doing or forbearing to do any official act or for showing or forbearing to show favour or disfavour to any person in the exercise of his official functions by public servant, or for rendering or attempting to render any service or disservice to any person was punishable as an act of corruption. Clause(b) to the explanation to Section 7 before the amendment clarified that gratification is not restricted to pecuniary gratifications or to gratifications estimable in money, and the Clause(c) provided that legal remuneration is not restricted to remuneration which a public servant can lawfully demand, but includes all remuneration which he is permitted, by the Government or the organisation which he serves to accept. Clause(d) contained in the explanation prior to the amendment provided that if any public servant has received gratification as a motive or reward for doing something which he does not intend to do or for doing something which he is not in a position to do, or has not done, that will also be treated as acceptance of gratification as a motive or reward for doing something as meant under Section 7.
17. Now let us see what is the change brought OP(Crl.).No. 83 of 2017 22 about by the 2018 amendment. After the amendment, Section 7 has three clauses. Clause(a) deals with obtaining or accepting or attempting to obtain an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly, or to forebear or cause forbearance to perform such duty either by himself or by another public servant. Clause(b) deals with obtaining or accepting or attempting to obtain an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant, and Clause(c) deals with public servants performing or inducing another public servant to perform his duties improperly or dishonestly or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person. The explanation to the present Section 7 provides that the act of obtaining or accepting, or attempting to obtain any undue advantage shall by itself constitute an offence under Section 7, even if the performance of the public duty by the public servant is not or has not been improper. Thus, the explanation makes it clear OP(Crl.).No. 83 of 2017 23 that, whether the public servant has discharged the duty improperly or not, he can be prosecuted, if he has obtained or attempted to obtain any undue advantage for the discharge of his official duty. The explanation 2 to the present Section 7 explains that a public servant who has obtained or accepted or has attempted to obtain an undue advantage for himself or another person by abusing his position as a public servant or by using his personal influence over another public servant, or by any other corrupt or illegal means, is liable for prosecution under Section 7, and Clause(ii) to the explanation 2 provides that it shall be immaterial whether the public servant has accepted or obtained or attempted to obtain such undue advantage directly or through a third party.
18. A reading of Section 7 after the amendment shows that the law has now widened its scope to deal with different instances of corruption or acceptance of undue advantage for the performance of public functions improperly or dishonestly, and any public servant who has accepted or obtained such undue advantage even for another person, directly or through a third party, or on an offer to influence some other public servant OP(Crl.).No. 83 of 2017 24 under his control or whom he can influence, is punishable under Section 7 after the amendment.
19. As regards the Sub Clause(iii) of Clause(d) of Section 13(1) prior to the amendment of 2018, there was some confusion, and some issues came up for judicial adjudication as to whether the said Sub Clause(iii) deals with any offence requiring mens rea. This Court had come across many instances of public servants being baselessly and unnecessarily prosecuted on some allegations under the former Sub Clause(iii) that by his conduct as a public servant, or by the discharge of functions as a public servant, he has caused loss to the Government, or he has caused advantage or profits to some other person. The present amendment has taken away the Clause(d) with the sub clauses, and the different instances formerly covered by Clause(d), are now, in a modified form, brought under the present Section 7 which contains three clauses to deal with different instances of corrupt acts of public servants.
20. The Amendment Act has also introduced Clause(d) to Section 2 of the Act to define "undue advantage", and the present definition is that any gratification whatever, other than legal remuneration OP(Crl.).No. 83 of 2017 25 can be treated as undue advantage. The Amendment Act has also added an explanation to the Clause(d) that the word "gratification" is not limited to pecuniary gratifications or to gratifications estimable in money, and that legal remuneration is not restricted to remuneration paid to a public servant, but includes all remuneration which he is permitted by the Government, or the organisation which he serves, to receive. Thus, it can be seen that the explanation to Clause(b) has expanded the scope of gratification. Any gratification or advantage or any benefit, though not estimable in money can be treated as undue advantage for the purpose of Section 7. The former concept was that the advantage or benefit derived by the public servant for himself or any other person shall be some valuable thing or pecuniary advantage. The amendment has now widened the scope, to bring any sort of advantage or benefit derived by the public servant for himself or for any other person, within the scope of Section 7, irrespective of whether the advantage derived or obtained by him is pecuniary advantage, or something estimable in money. The amendment has brought a new Section 7A, and the Sections 8 to 10 of the PC OP(Crl.).No. 83 of 2017 26 Act now stand re-drafted. I feel it not necessary to go in detail into those sections. For dealing with the main instances of corruption or acceptance of undue advantage or illegal gratification, it would suffice that the changes introduced in the former Sections 7 and 13 by the amendment are discussed in detail. Section 20 of the PC Act dealing with presumption in cases of acceptance of illegal gratification also now stands re-drafted. The original Section 24 granting protection to persons who offered or agreed to offer any gratification or any valuable thing to public servants stands now deleted.
21. The Amendment Act of 2018 has introduced a new Section 17A in the PC Act with the object of giving protection to public servants who have done or ordered or approved administrative actions or have taken decisions as public servants in the bonafide discharge of their official functions. This amendment in the form of a new Section was necessitated in the unfortunate circumstance where even honest public servants who discharged their functions without any malafide or malpractice or dishonesty happened to be indiscreetly prosecuted under the P.C Act by different prosecuting OP(Crl.).No. 83 of 2017 27 agencies simply on the ground of some malfeasance on their part, or some lack of diligence or circumspection on their part, irrespective of whether the said act has caused undue benefit or gain to any other person with the knowledge or connivance of the public servant. There were occasions where our public servants and even administrators, hesitated or feared to do their functions boldly and confidently due to fear of being prosecuted unnecessarily for political or personal ends, or for nothing done by them dishonestly.
22. The present Section 17A introduced by the amendment provides that no police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties, without the previous approval of the officer or the authority concerned. Clause(a) provides that in the case of a public servant who is or was employed, in connection with the affairs of the union at the time when the offence was alleged to have been committed, the previous approval of the Central Government shall OP(Crl.).No. 83 of 2017 28 be obtained. Clause(b) provides that in the case of a public servant who is or was employed, in connection with the affairs of a State, at the time when the offence was alleged to have been committed, the approval of the State Government shall be obtained before proceeding for enquiry or investigation. Clause(c) provides that in the case of any other person who comes within the definition of public servant previous approval of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed, shall be obtained.
23. While providing such protection to public servants in connection with the bonafide discharge of duties, the first proviso to the section provides that in the case of arrest of a public servant on the spot on the charge of accepting or attempting to accept any undue advantage, no such approval shall be necessary. Thus, trap cases are excluded from the operation of Section 17A.
24. A reading of the present Section 17A will show that the object of the section is to protect public servants from hasty or baseless or indiscreet prosecutions without enquiring into the circumstance in OP(Crl.).No. 83 of 2017 29 which the alleged administrative or official act was done by the public servant, or whether the malfeasance or malpractice alleged against the public servant would involve any element of dishonesty or illegality or impropriety by way of accepting any undue advantage. Section 19 of the Act dealing with previous sanction for prosecution has undergone some changes by the amendment of 2018, I feel it not necessary to go into those aspects in this proceeding.
25. As discussed in the foregoing paragraphs, it can be seen, on an examination of the various provisions of the PC Act, as it stands now amended by the Amendment Act of 2018, that law is now definite and specific as to how and when a public servant can be prosecuted on the allegations of corruption, what all instances of misconduct and corruption are covered by the law after the amendment, in what all circumstances a prosecution is possible against a public servant, and what is the protection granted to public servants under the law from baseless, vexatious and indiscreet prosecutions.
26. On a reading of the complaint in this case, I do not find any instance of misconduct or corruption, OP(Crl.).No. 83 of 2017 30 as defined under Section 13 (1) of the P.C Act as it stood prior to the Amendment of 2018, either in the form of acceptance of illegal gratification or in the form of misuse or abuse of powers, or by way of any act done dishonestly or illegally or unlawfully with the object of causing some sort of monetary gain or pecuniary advantage, to any person. The Government collectively took a decision to grant promotion to four Police Officers, and this was approved and maintained by the successor Government also. There is no reason why the 2nd respondent filed complaint against the Chief Minister and the Home Minister when the promotion was granted collectively by the Cabinet. Anyway, whatever be the circumstance of promotion, or if at all, there was any irregularity in the promotion granted by the Government, it is a collective decision taken by the Government in the exercise of the prerogative under the law, and if anybody has grievance as regards the promotion given to any officer, the right remedy is to approach the competent judicial Forum. It cannot be the subject matter of an investigation under the P.C Act.
27. At the initial stage of this proceeding, the OP(Crl.).No. 83 of 2017 31 VACB maintained a stand that there was something to investigate. But later, the VACB submitted a statement of objection that there is no scope at all for a prosecution in this case under the P.C Act and that what is involved is only some irregularity in the matter of promotion. The report of preliminary enquiry made by an Inspector was produced before this Court. In the said report, he has concluded that there is no scope for a prosecution under the P.C Act, but he has made a recommendation to the Government to review the promotion given to the four Police Officers, and he has also advised that in future, promotion to the DGP rank shall be made in accordance with the Rules. It appears that the Inspector who submitted such a report assumed supervisory powers to make such a recommendation to the Government. An Inspector is not expected to make such recommendations, in a manner criticising the Government.
28. Though the VACB took a vigorous stand at the initial stage that the matter requires investigation, the VACB later wisely realised that the decision of the Government to grant promotion to the Senior Police Officers cannot be the subject matter of investigation OP(Crl.).No. 83 of 2017 32 under the P.C Act. Accordingly, the VACB submitted a statement in court, dated 7.3.2017, that the issue of promotion is purely an administrative matter of the Government, and that the issue does not involve elements of corruption or misconduct for a prosecution under the P.C Act. Thus,the VACB has fairly conceded now that there is no scope for investigation in this case under the P.C Act.
29. On a perusal of the entire materials including the complaint made by the 2nd respondent before the court below, I find that the 2 nd respondent brought the complaint without any basis, or just to harass the public servants, or for publicity, or to make gain out of it. The impugned order is liable to be set aside, and the complaint brought by the 2nd respondent without any basis, or maliciously, is liable to be rejected.
30. When the Court came across some instances of wrong exercise of powers by the VACB under the P.C Act, 1988, the court thought of issuing some guidelines to the VACB and the Police regarding the nature and the scope of the functions of the VACB and the Police under the P.C Act,1988. This Court also felt the absolute necessity of a legislation to prevent vexatious OP(Crl.).No. 83 of 2017 33 litigations and criminal prosecutions. Accordingly, the Government was directed to report whether the Government has the urge and determination to bring such a uniform law in Kerala for the protection of citizens and public servants. It appears that the Government has not so far thought of making such a law though report was filed that appropriate measures would be taken. We do not have any uniform law in Kerala to prevent vexatious litigations. Though a Bill was introduced in 1994 as the Kerala Vexatious Litigation (Prevention) Bill, it unfortunately lapsed. Now it is very easy for the Government to bring such a legislation as already proposed in 1994, with necessary amendments and modifications, if required, in the changed circumstances. Presently we have only the Vexatious Litigation (Prevention) Act 1949 (Madras) which will have limited application in Kerala. The said Act will not apply to the parts of Kerala other than the erstwhile Malabar area. In Advocate General v. T.A Rajendran [1998 (1) KLT 305], a Division Bench of this Court led by the then Hon'ble Chief Justice held thus in paragraph 8 of the judgment.
"Law to prevent vexatious litigation OP(Crl.).No. 83 of 2017 34 has been in force in the State of Kerala only in the Malabar area for the last 31 years. After the new State of Kerala came into existence, no steps have been taken so far to enact a law to prevent vexatious litigation applicable throughout the State. Prevention of vexatious litigation is a very laudable object. People must resort to courts for vindicating justice and not for harassing others. The tendency of abusing the process of the court and harassing the innocent is on the increase.
It is incongruous that law to prevent vexatious litigation is in force only in a part of the State. We would therefore like to invite the attention of the Legislature of the State to the urgent necessity of enacting a uniform law to prevent vexatious litigation applicable to the entire State of Kerala."
31. In Jose V. Madhu (1994 (1) KLT 855], this Court had observed the necessity of Rules to be framed by the High Court. Accordingly, some Rules were framed and forwarded to the Government. Recently, the High Court received a reply from the Government that the matter has been referred to the Law Reforms Commission. The 2nd respondent is a person who has brought about 45 complaints against different persons. OP(Crl.).No. 83 of 2017 35 It is here, the necessity of a legislation assumes importance. It is high time we made a law for the prevention of vexatious litigations. This Court hopes and expects that the Government of Kerala would take the matter very seriously and take necessary steps immediately to bring such a legislation.
32. Finding the necessity of some guidelines to the VACB and the Police Department generally in the matter of discharge of functions under the P.C Act, this Court directed the parties in this proceeding including the Government to furnish the draft guidelines, to help the court in formulating the guidelines. Nobody has furnished the required draft guidelines. Even while stressing the necessity of a law to prevent vexatious litigations, this Court would urge and direct the whole Police Department including the VACB that whenever any instance of corruption or criminal misconduct or any sort of malpractice involving elements of corruption is brought to notice by complaint or otherwise, strict measures and actions shall be taken, and the persons involved in such acts and activities of corruption or misconduct must definitely be prosecuted. There shall not be any sort OP(Crl.).No. 83 of 2017 36 of compromise when such elements of corruption or misconduct, or any malpractice involving such corruption is noticed or revealed.
33. Though the parties have not responded to the call of the court to furnish draft guidelines, this court feels that some directions are necessary in the matter.
34. As already observed, the VACB or the Police can step in for necessary action including investigation under the P.C Act, only when a definite offence under the P.C Act is revealed and disclosed, and the allegations of such corruption or misconduct are substantiated by materials. The VACB or the Police and also the Special Courts functioning under the P.C Act must be able to identify false or vexatious complaints brought for publicity or for personal gain, and genuine complaints brought for honest prosecution on the basis of definite materials substantiating the allegations of corruption and misconduct. The VACB and the Police are cautioned that if any unnecessary enquiry or investigation proceeds on baseless complaints, that will cause harassment to the public servants, and it will have atrocious consequences OP(Crl.).No. 83 of 2017 37 causing blemish on the entire career of public servants.
35. There was an occasion where the Annual Budget and the Finance Bill passed by our Legislature was challenged by way of complaint before the VACB. It is quite unfortunate and alarming that without understanding the scope of an enquiry or investigation as regards the Budget or the Finance Bill passed by the Legislature, the VACB straight away proceeded for enquiry and investigation. The issue came up before this Court in Crl.M.C No.1977/2017. The legality of the investigative actions of the VACB on a complaint complaining elements of corruption in the Budget and the Finance Bill was challenged in the said proceeding before this Court. It was concerning the Budget and the Finance Bill passed by the former Government. Finding that such an investigation would amount to investigative excess or Police action without authority, the Deputy Superintendent of Police who registered the said F.I.R was directed to appear in court and explain how such a crime happened to be registered and also under what authority it was registered. While making such a direction, this Court OP(Crl.).No. 83 of 2017 38 also observed that the VACB cannot in any circumstance investigate into the wisdom of the legislative assembly and probe into the vitiating elements or impropriety in a law passed by the Legislature. Anyway, when the court made such a direction, the VACB realised the wrong committed by them, and the Deputy Superintendent of Police submitted an explanation that the VACB has realised the very serious mistake committed in registering such a crime, and that steps have been taken to refer the crime. Accepting that report, the matter was disposed of by this Court on 6.4.2017. The legislature can pass any law as authorised by the Constitution, and it will definitely be a product of the majority decision of the House or the wisdom of the House. If at all, such a legislation involves anything for interference on the grounds accepted by the Constitution of India, the constitutional courts will look into the matter, examine the law, and take necessary decision. Such areas cannot be intruded into by the investigating agencies. Our set up is a democracy governed by rule of law, and governance is made by a Government elected by the people. The investigating agencies cannot in any circumstance probe OP(Crl.).No. 83 of 2017 39 into the propriety of the law passed by the legislature.
36. In the instant case, what is involved is the administrative decision of the Government to grant promotion to some Police Officers. In any area where administrative decision or policy decision of the Government is involved, that cannot be the subject of investigation under the P.C Act. If the decision of the Government is against the existing laws, or against public policy, or against the society at large, we have a constitutional set up to examine such things, take decisions and correct the wrong decisions or actions. Anyway, such policy decisions or administrative decisions or administrative matters cannot be subjected to enquiry or investigation under the P.C Act, unless it involves any individual case of corruption or criminal misconduct as defined under the P.C Act. In individual instances of administrative actions by public servants the Police machinery can conduct enquiry or investigation under the P.C Act subject to the new Section 17A, if the act or conduct of the public servants involves elements of corruption or misconduct as defined under the law. OP(Crl.).No. 83 of 2017 40
37. It appears that there is a misconception among the officers of the VACB and the Police that loss caused to the Government or the Public Exchequer by a public servant in the discharge of his official functions is a ground for proceeding against him under the P.C Act. This misconception is the result of the wrong understanding of the scope and object of the Prevention of Corruption Act. For a prosecution against a public servant on the allegation of corruption or criminal misconduct as meant and defined under the P.C Act, the public servant must have either accepted illegal gratification or undue advantage for himself or any other person for anything done as part of his official functions as a public servant, or he must have dishonestly or fraudulently misappropriated money from public funds, or must have otherwise converted for his own use any property entrusted to him, or under his control as a public servant in the discharge of his official functions, or he must have enriched himself illicitly, or must have acquired pecuniary resources or property disproportionate to his known source of income.
38. There can be instances where some benefit or OP(Crl.).No. 83 of 2017 41 advantage is caused to a person, or such benefit or advantage is derived by a person by the wrongful acts of a public servant or due to his carelessness in the discharge of his duty or due to malfeasance. In such cases, there may be corresponding loss to the Government or the Public Exchequer also. What matters in such cases, is not whether the public servant has just caused loss to the Government or the Public Exchequer, but whether there has been any vicious link or nexus between him and the person benefited, and whether the public servant caused such benefit to the other person with the knowledge that his act will or may cause such benefit and cause loss to the Government or the Public Exchequer. In short, what is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public OP(Crl.).No. 83 of 2017 42 body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C Act.
39. The VACB will have to make enquiry into different allegations of corruption or misconduct or malfeasance or misfeasance in public offices. In many instances, such enquiry may reveal carelessness or breach of duty or malfeasance or misfeasance or wrong discharge of duty by public servants. In such instances where the VACB could not detect any instance of corruption or criminal misconduct as defined and meant under the law, the VACB can report the facts to the Government or the concerned authority, and on getting such report, the Government or the concerned authority can initiate disciplinary action against the erring public servant. In all cases of malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C Act cannot be initiated. If it is only a case of OP(Crl.).No. 83 of 2017 43 dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary action can be initiated against the erring public servant, and if any public servant has caused any wrongful loss to the Government by the discharge of his official functions improperly or wrongfully, or as the result of wrong administration or malfeasance or misfeasance, no doubt, the Government or the appropriate authority can recover the loss from him, and also initiate disciplinary action against him.
40. As already observed, investigation under the the P.C Act cannot be conducted as regards policy decisions or administrative actions of the Government. Of course, in such cases where the discharge of function or administrative action or decision involves any individual case of corruption or criminal misconduct as defined and meant under the law, the VACB or the Police can make investigation. The VACB in the State of Kerala is only a branch of the Police Department. It does not have any exclusive province or independent existence because it is not a statutory creation like the Central Bureau of Investigation (CBI) or the National Investigating Agency (NIA. Even while OP(Crl.).No. 83 of 2017 44 the CBI or the NIA is governed by the Act by which it is formed, they are also governed by the provisions of the Code of Criminal Procedure and the Indian Evidence Act in the matter of investigation or prosecution. The VACB is also governed by the provisions of the Code of Criminal Procedure and the Indian Evidence Act as the entire Police Department is governed by such laws. The CBI or the NIA or the VACB cannot have any special privilege or prerogative in the matter of investigations because every investigation is governed by the Code of Criminal Procedure, which is applicable to all prosecuting agencies. Of course, there is the Vigilance Manual for internal guidance. This Vigilance Manual does not have the force of law, and it will not get legal sanctity because it is only a Manual for the guidance of the officers of the VACB in the discharge of their functions. Any provision of the Manual against the provisions of the law of the land like the Code of Criminal Procedure, or the Indian Evidence Act, will not have any value or application in the matter of investigation or prosecution. This shall be borne-in-
mind by the officers of the VACB.
41. In the foregoing paragraphs, this Court has OP(Crl.).No. 83 of 2017 45 discussed the scope of the functions of the VACB in Kerala and the Province wherein they are expected to discharge their functions. Investigation of corruption cases or cases under the P.C Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required. In the investigation in corruption cases, the concept of participative supervision must be applied. This means that every investigation must be a team work, monitored and supervised by the superior officers. Crimes can be registered and investigation can be made under the P.C Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of OP(Crl.).No. 83 of 2017 46 disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. Such functions cannot be the subject matter of enquiry or investigation under the P.C Act, unless the executive action or administrative action individually involves elements of corruption or criminal misconduct on the part of any public servant. The things discussed in the foregoing paragraphs can be taken as guidelines for the discharge of functions by the VACB in Kerala and also the Police Department, under the P.C Act, and this Court hopes that in future, the Police Officers and also the officers of the VACB will follow the guidelines in the discharge of their official functions.
In the result, with the above guidelines to the VACB in Kerala and also the Police Department generally for the discharge of functions under the P.C Act, this OP(Crl.).No. 83 of 2017 47 Original Petition is disposed of, by setting aside the impugned order passed by the court below and also by rejecting the complaint made by the 2nd respondent in the court below.
Sd/-
P.UBAID
rkj/ma JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1- CERTIFIED COPY OF THE COMPLAINT DATED
7TH NOVEMBER 2016 FILED BY PAICHIRA
NAVAS BEFORE THE COURT OF ENQUIRY
COMMISSIONER & SPECIAL JUDGE,
THIRUVANANTHAPURAM.
EXHIBIT P2- TRUE COPY OF THE NEWS REPORT APPEARED
IN TIMES OF INDIA DAILY DT.12/01/2017.
EXHIBIT P3- CERTIFIED COPY OF THE IMPUGNED ORDER
DATED 30/12/2016 MADE IN ORDER IN
CMP.1153/2016 OF THE ENQUIRY
COMMISSIONER AND SPL. JUDGE,
THIRUVANANTHAPURAM.
EXHIBIT P4- TRUE COPY OF THE GOVERNMENT ORDER
NO.G.O.(RT)1392/2016/GAD DT.01/03/2016. EXHIBIT P5- TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(RT)8476/2015/GAD DATED 24/11/2015.
RESPONDENTS EXHIBITS :
OP(Crl.).No. 83 of 201748
ANNEXURE R1(a) : TRUE COPY OF THE PROCEEDINGS DATED 3.8.2016 OF THE COUNCIL OF MINISTERS ANNEXURE-I : TRUE COPY OF THE QUICK VERIFICATION REPORT NO.QV 01/2017/SIU-I/POL DATED 15.2.2017 SUBMITTED BEFORE THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM ANNEXURE R1(b) : TRUE COPY OF NOTE FOR THE COUNCIL OF MINISTERS IN RESPECT OF PROMOTION OF 5 IPS OFFICERS OF 1986 BATCH IN THE MATTER OF CANCELLATION OF GOVERNMENT ORDER DATED 01.03.2016.
ANNEXURE R1(c) : TRUE COPY OF THE LIST OF COMPLAINTS AND THE PERSON AGAINST WHOM THE COMPLAINT HAVE BEEN FILED AND THE STATUS OF THE COMPLAINTS ANNEXURE R1(d) : TRUE COPY OF THE LIST OF COMPLAINTS FILED BY THE SECOND RESPONDENT BEFORE THE KERALA LOK AYUKTA ANNEXURE R1(e)TRUE COPY OF THE COMMUNICATION DATED 12.06.2017 ISSUED BY THE DIRECTOR, VACB AND THE LIST CONTAINING THE CMPS AND PETITIONS FILED BY THE 2ND RESPONDENT BEFORE THE SPECIAL COURTS (Vigilance) AND VACB.
ANNEXURE R1(a) : TRUE COPY OF THE GOVERNMENT ORDER G.O (RT) NO.121/2017/VIG. DATED 17.7.2017 ANNEXURE R1(b) : TRUE COPY OF THE ORDER NO.M1- 19307/2017 DATED 06.12.2017 :
/TRUE COPY/ P.S to Judge